|The Separation of Powers Between the Legislature, Executive and the Judiciary in the New Constitution|
|by John Mary
Waliggo, Priest of the Catholic Church and Historian, Member of the
Uganda Constitutional Commission, 1991
The above topic is certainly the core of any government and therefore an essential part of any National Constitution. The Legislature, Executive and Judiciary are the three basic organs of the state. In our African mentality, we may refer to them as the three cooking-pot supporting stones which make every meal possible. Once they are well organised to function in the interest of the people as a whole, the common good of the nation is served and the country develops in stability and joy.
Before we outline the procedure to be followed in this presentation, let us first define the three organs:
(a) Legislature: can also be called Parliament, Assembly, Congress or as it is currently known in Uganda, National Resistance Council - This is the law-making body in the Country. It should be the Supreme Organ of the State because it consists of the people's representatives. Consequently, whatever is done in the legislature is or should be done in the name of the people. It may operate under Presidential democracy or Parliamentary democracy. It may be organised in one or two houses.
(b) Executive: Consists of the Executive President or the Executive Prime Minister and the Ministers who are the political heads of their respective Ministries. Together they form the Cabinet and usually the executive has the responsibility of initiating policies to be debated in Parliament. It supervises and monitors government work in all fields. It executives whatever Parliament has passed. The executive or cabinet has a common responsibility and therefore whatever it decides binds on all and each of its members. If a member strongly disagrees with the decision of the cabinet, he is supposed to resign.
(c) The Judiciary: is the organisation for the administration of justice in the country at all levels. Justice is normally administered by judges, magistrates and other bodies, all legally entrusted with judging matters between individuals, groups, the state and other organs.
Statute 5, 1988 which set up the Uganda Constitutional Commission gave eight guiding principles, but two are most specifically connected with the present topic:
(i) A Constitution that will recognise and
demarcate division of the Executive, the Legislature and the Judiciary
and create viable checks and balances among them.
Both of these two principles form the basis of liberal democratic and constitutional systems. Other principles will be mentioned as we discuss the topic further.
The best and only way of appreciating the organisation of these three state organs is to locate them within the general political systems.
A political system is one by which decisions on important national matters of the country are made. The political system defines the political power - it shows clearly which organ or individual decides matters.
The world today is governed by three political systems:
(a) Monarchy: Here political power is concentrated in an individual. Decisions are made by the king or his Council; laws are issued in his name and justice is carried out by him or his agents. The three organs are united in the same person or organ of monarchy. This is how things were in most countries in the past. At present such monarchies exist in the Islamic States of the Middle East. Elsewhere, absolute monarchies which combine the functions by these three organs have been turned into Constitutional or Ceremonial monarchies as is the case in Western Europe.
(b) Oligarchy: political power is concentrated in a small group of people, usually these people have taken power by force and exclude the majority from decision making. This was the case in the past when only a few elite had the right to vote and to rule. Today such system is found in many African and Latin American countries where military dictatorships rule and in South Africa where the majority is excluded from political power.
(c) Democracy: In this system political power belongs to the people and whoever makes decisions in the country derives his/her authority from the people and is accountable to the them. Government in such a system is said to be by the people, of the people and for the people.
(d) Today, most countries, even those which are dictatorial, claim to be democratic. The form of democracy depends on the conditions in each country. There is no one system of democracy. What indicates that a system is democratic is whether it is based on, and is accepted by the people, to whom those in authority are accountable.
In Uganda, no doubt, we want a democratic system of government which can suit our situation and aspirations.
This is the most direct form of democracy, where every adult citizen has an opportunity to direct, discuss or participate in national and local matters or public policies. It is different from parliamentary democracy, where decisions are made on behalf of the people by their elected representatives. If a country is to fully develop, the people must be actively involved in discussing, deciding and implementing national policies or matters which affect their destiny and the direction of the country.
The Theory and Practice of separation of Powers - In Order to balance each organ
The current debate in Constitutional matters the world over is on the question whether or not a separation of powers among the three state organs is at the advantage or disadvantage of the nation and its citizens. If the principle of the separation of powers is accepted, how far should such separation be carried?
(a) Those who advocate rigid and strict separation of powers among the three organs, advance the following reasons:
(i) Strict separation of powers avoids tyranny.
The American doctrine of separation of powers grew out of the fear of
tyranny. James Madison put it clearly: The accumulation of all
powers: Legislative, executive and judiciary in the same hands may
justly be pronounced the very definition of tyranny.
The separation of powers has elements of universal validity but it does not follow that the greater the degree of independence of the legislature, executive and judiciary the better the government system.
(b) Those who prefer a more smooth collaboration among the three State Organs accuse the separation of powers of the following weaknesses:
(i) It causes confrontation, stalement, deadlocks.
(c) The middle position in such cases is the best alternative to take. The governing law in separating powers among the three organs is to avoid tyranny on the one hand and avoid anarchy on the other hand. The balance of power should always be measured on the following principles:
(i) Security: The ability of government to
protect the country and all its citizens under any emergence or threat
without undue delay or unnecessary internal divisions among the three
There are merits and demerits in both systems as practiced respectively by the USA and Britain. Those who follow current constitutional debates are aware of the change the Constitution group in USA is advocating. This group has existed for several decades but has become more vocal recently. The group finds the rigid separation of power between the Executive and Congress out-dated. They attribute to it the inefficiency, Presidential dictatorship, failure to implement policy by Cabinet whose Ministers are not people's representatives and unnecessary tensions and conflicts between Congress and Executive, especially when Congress is controlled by a different political party from that of the President. The group argues that US system of government should have already disintegrated had it not been the abundant financial resources the country has.
All this goes to say that the American system of government has vocal critics and may consist of defects which, unless removed may some day cause some dangerous stalement. The fact, however, that the system has worked for 200 years without a military coup d'etat shows its strength and achievement of its primary aim of preventing both tyranny and anarchy.
For the Ugandans who advocate such a system it would be necessary that they critically evaluate it within the American context and show how it can be profitably adapted to our local situation and mentality.
The British type of Parliament system of government is also equally criticised for Parliamentary dictatorship especially where a single political party commands absolute majority, for the excessive control of cabinet by the Prime Minister and for the necessity of general election wherever the government loses a vote of no confidence in Parliament.
Constitutional Presidential systems of government have proved rather unsuccessful in African countries. Wherever they have been, the Executive Prime Ministers have at one time or another usurped their powers and proclaimed themselves as executive presidents.
Whenever, within African countries, there have been frequent tensions and conflicts between Parliament and the Executive, the military has found it most inviting to intervene and assume power, thus silencing both organs of state.
It is, therefore, with such points in mind that we should seek a system of government which avoids the extremes of separation and cooperation and is in tune with the aspirations of the people and the demands of effective and democratic government in the developing countries. Such system should contain sufficient checks on each organ to prevent dictatorship. It should emphasise the necessary cooperation among the organs for the smooth and efficient running of government.
(a) Checks on the Presidency:
(b) Checks on the Cabinet:
(c) Checks on Parliament
(d) Checks on the Judiciary:
(e) General Checks:
(i) Free Speech and Free Press:
(ii) Political education and military service:
(iii) Public opinion:
(iv) The Principle of decentralisation:
(v) The need for specialised Non-governmental
There is, according to me, no ideal ready-made system of checks and balances which Uganda can copy piece-meal. We have to devise our own, copying only those elements which fit in our situation and suggesting those which we have learnt from the lessons of our history, culture and constitutional/political crises. Once a culture of political maturity and constitutionality is developed among leaders and people as a whole, there will be much hope that each organ of government will respect the rights of other organs and work harmoniously with other organs to ensure justice and peace, constitutionality and and human rights, development and efficiency without unnecessary tensions and conflicts.
|© 2002 Federo for all Uganda, All Rights Reserved|